"Due process of law" is one of the most overworked phrases in the Constitution of the United States of America. This is an introduction to the legal doctrine of "substantive due process", followed by an analysis of three different strands of "substantive due process" law, recently applied in the cases decided in the 2002 October Term of the United States Supreme Court.

"I can't find a right to X in the Constitution!"

Substantive due process protects rights and freedoms not specifically mentioned in the Constitution. In constitutional law, it is a poor argument to say "I can't find a right to X in the Constitution", for example, "I can't find a right to abortion in the Constitution". The "default" status is liberty, not oppression. That which is not prohibited, and prohibited for a darn good reason, should be permitted. The onus is on the government to justify restrictions.

In Anglo-American tradition on which American constitutional law is based, legal "rights" were seldom conceived in a positive way, as axioms or necessary conditions of liberty. "Rights" were usually reactions to "wrongs". If the English had conceived of a particularly foul method of abusing the citzenry, the wrongness of such acts was fresh in the minds of the colonials and they could readily articulate a countervailing "right". The first one that came to their minds was the "right" to have and express opinions, and practice one's own religion, because many of them had immigrated to America precisely to avoid the conformity imposed in England.

The drafters of the United States Constitution did not, initially, include a "Bill of Rights", on the model of, say, the Declaration of Rights drafted by George Mason and adopted by the Virginia Constitutional Convention in June of 1776. The Constitution was not a revolutionary manifesto, and thus its chief architects, such as James Madison, believed it should not list specific rights. Moreover, it was a well-established principle of statutory construction that the listing or "enumeration" of specific rights implied that any other rights, not so listed or "enumerated", were unenforcable. No one was so naive as to think that Parliament had exhausted the full range of injustices that might be inflicted upon a people. Surely new rights would have to be asserted against the ever-fertile fields of oppression.

Nonetheless, for political reasons too complex to describe here, a "Bill of Rights" was promised to secure ratification of the Constitution. To avoid the exclusion of unenumerated rights, the Bill included a Ninth Amendment which read:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Ninth Amendment, however, has seldom had much use in combatting irrational, arbitrary or purposeless government oppression. The problem is not so much in getting rights recognized as getting them enforced. At the time the Bill of Rights was ratified, the power of judicial review (see Marbury v. Madison) was undefined, and the Bill of Rights did not apply to the States. The extension of federal power over the States was purchased with the slaughter of the American Civil War, and came with amendments to the Constitution made after the war.

"Substantive" v. "Procedural" Due Process

The Due Process Clause of the Fourteenth Amendment declares that no State shall "deprive any person of life, liberty, or property, without due process of law." A similar clause appears in the Bill of Rights, in the Fifth Amendment, which states that no person shall "be deprived of life, liberty, or property, without due process of law". The difference is that the Fifth Amendment applied only to the federal government. The Fourteenth Amendment applies to the States.

A literal reading of the clause would suggest that it guarantees only that certain legal procedures be followed. This is certainly the case with deprivation of "life" (capital punishment). There is no "right not to be killed". (Cf. The Clash, "Know Your Rights", Combat Rock). There is only the promise that arrest and trial will follow fair procedures. Similarly, there is no absolute promise that your property won't be taken for public use, only the promise that you will be compensated if it is.

When it came to "liberty", however, the courts were inclined to go beyond mere procedure, and define "substantive" limits. While the Fourteenth Amendment provided no specific or detailed instructions on where those limits might be, judges and commentators of the period all believed that the "common law" providing a pre-existing framework of legal limits, which now only needed to be applied by federal judges to the conduct of State governments. The law knew how to treat free men: if slaves were declared free men then the matter was settled.

The Rise and Fall of Substantive Due Process as a Tool of Laissez-Faire Capitalism

The primary beneficiaries of the new doctrine of "substantive" due process, however, were not former slaves for whom the Fourteenth Amendment was enacted, but railroads and giant industrial corporations. The Supreme Court was soon besieged with lawsuits seeking to enforce corporate "rights", and the Court indulged them. From around 1890 to 1937, the Supreme Court repeatedly invalidated State laws to protect workers. Some of the Justices were ideologues, favoring notions like Social Darwinism and laissez-faire capitalism, but the Court did not consistently favor such doctrines. The idea which did bind the Court was the notion of the common law: that a natural order emerged from precedent. This made the court inherently "conservative" and protective of the status quo. For example, there is no common law tradition of labor unions or collective bargaining, therefore, 19th century judges reasoned, collective bargaining must be "illegal".

In this period, justice was received from the past, not made in the present. Thus, when the New York legislature, swayed by a progressive "fad", disturbed the natural order of things by enacting fair wage and hour laws for bakers, this was seen as the deprivation of the "freedom of contract" between worker and employer by an interloping third party. See Lochner v. New York, 198 US 45 (1905) (but see Justice Holmes' dissent, quoted here).

The Great Depression put an end to economic substantive due process as a viable legal doctrine. Faith in markets and the allegedly self-policing nature of capitalism hit an all-time low. It became untenable to defend the legal status quo when the existing legal relations were causing suffering or at least getting in the way of recovery. "Substantive due process" came to be associated, not with the defense of natural rights and liberties, but rather with impeding progress by applying dead legal formulas.

Penumbras and Emanations

"Substantive due process" fell into such disrepute that, even though it seemed tailor-made for the liberal courts under Chief Justice Earl Warren, they could not bring themselves to invoke it. Instead, there was a short spree of "Ninth Amendment" law-making from Griswold v. Connecticut, 381 U. S. 479 (1965) to Roe v. Wade, 410 U. S. 113 (1973). During this period, the Ninth Amendment was used to hammer out a hitherto unsuspected "right to privacy" out of implied rights: the "emanations" and "penumbra" of enumerated rights (such as the right to be free from unreasonable searches, "enumerated" in the Fourth Amendment).

The problem with the Ninth Amendment, however, lies not in identifying the unenumerated rights. The problem lies in judicial assertion of the supremacy of these unenumerated rights over duly-enacted State law. Only the Fourteenth Amendment gives the courts the power to assert liberty over majority rule in the States. Towards the end of the 20th Century, the Depression-era stigma receded somewhat, and the "right to privacy" cases from Griswold to Roe were re-conceptualized as substantive due process cases. See Planned Parenthood v. Casey, 505 US 833 (1992).

Substantive Due Process in 2003

The 2002 October Term (cases decided between October 2002 and June 2003) included exemplars of three (3) types of "substantive due process" cases:

1. outrageous government conduct
2. "right to privacy"
3. limits on lawsuits

New Cases 1: Outrageous Government Conduct

Rodney King notwithstanding, a criminal suspect who flees the police and survives any subsequent beating is unlikely to win an "excessive force" case. To be found "excessive", the force used has to be outrageously excessive, sadistic, and malicious.

The substance of due process is that the government may not arbitrarily deprive any perosn of life, liberty or property. The deprivation can be by legislation or by executive action. In the latter case, the act of the governmental official must be so outrageous that it "shocks the conscience" of the judge reviewing the matter. See Rochin v. California, 342 U.S. 165 (1952). Federal judges are not easily "shocked".

Police conduct, to be considered legally "shocking", must be either deliberately or maliciously intended to hurt someone without any justifable government interest (which is hard to prove), or performed such grotesque negligence that it ammounts to "deliberate indifference" to the rights of others. This latter standard is set very high: it never applies in emergency situations where officials don't have time to carefully think about what they are doing. County of Sacramento v. Lewis, 523 U.S. 833 (1998) (high speed chase by police, even if reckless, does not violate substantive due process).

Against this backdrop the Supreme Court recently decided a case where a suspect was shot by the police, and then interrogated while he was receiving emergency treatment. Chavez v. Martinez, 538 U.S. ___ (2003) (Decided May 27, 2003). The case was presented as a Fifth Amendment case, that is, that being interrogated while was receiving emergency medical treatement, and thought he was dying, without a lawyer and without proper Miranda warnings, violated his Fifth Amendment privilege against self-incrimination. The Court rejected the Fifth Amendment claim, which would have exposed police to civil rights lawsuits for money damages everytime they neglect to give --or choose not to give-- a Miranda warning. The majority indicated, however, that they thought the police misconduct was sufficiently outrageous that Mr. Martinez might have a substantive due process claim.

Note well: the Court did not think that shooting an unarmed suspect several times, permanently blinding and paralyzing him, was outrageous. The police officers thought Martinez had grabbed an officer's gun. Under the Lewis case, the officers get the benefit of the doubt for emergency decisions. What most of the Court found outrageous was the interrogation while Martinez was suffering from extreme pain and thought he was dying: what Justice Stevens called "the functional equivalent of torture". No exigent circumstances could excuse this.

Thus, the doctrine of substantive due process is alive and well, for redress against outrageous government conduct, particularly when more specific constitutional protections do not apply.

New Cases 2: "Right to Privacy"

Some laws are so arbitrary and unjustifiable that they violate substantive due process. The recent case examplifying this principle is Lawrence v. Texas, 538 U.S. ___ (2003) (Decided June 26, 2003).

In Lawrence, the Court struck down Texas' sodomy law, and by implication all laws purporting to criminalize private consensual relations between adults, as a violaiton of substantive due process.

To do this, the Court had to find the law was arbitrary and unjustifiable --over Texas' objection that the law was justifiable on "moral" grounds. Contrary to conservative "parade of horribles" arguments, it is not hard to justify sex crime laws, without reference to vague "moral" objections. For molestation and bestiality laws, it would be suffice to assert that children and animals cannot effectively consent, and the laws are necessary to protect them. Bigamy and polygamy --which in fact are not really sex crimes: you do not have to prove any sex occurred, only that multiple marriages occurred-- laws can be justified to prevent abuse of marriage. In this case, the fact that Texas does not ban heterosexual sodomy refutes any argument that Texas might have offered to justify its law. Clearly, Texas has no interest in preventing sodomy per se but is concerned only with homosexual sodomy. Discriminating against groups of people based solely on the majority view that they are "morally" defective is not a legitimate concern of the State.

By moving the foundation of the "right to privacy" from the Ninth to the Fourteenth Amendment, the Court has abandoned the unpopular preoccupation with recognizing new "rights". By appealing to a general notion of sexual freedom, the Court abandons the specious practice of trying to classify newly-recognized rights as "fundamental". (Note how Justice Scalia's dissent repeatedly objects that the majority has failed to recognize a fundamental "right to sodomy"). Instead, the Court has placed sexual activities within a zone of protected personal freedom and put the burden on government to excuse its intrusions.

New Cases 3: Limits on Lawsuits

The same pressure of constant litigation by powerful business interests which created the Lochner era of economic substantive due process is today creating a new doctrine of substantive due process, in this case, limits on civil litigation.

Legislatures can be bought, or at least influenced by campaign contributions. The return on investment is "fabulous": a few thousand dollars in a campaign can buy favors worth millions. Tort lawyers, on the other hand, are an expensive annoyance, especially when they can parley a jury's outrage into huge awards of punitive damages.

Punitive damages are intended not to compensate, but to deter. They are not measured by the injury to the plaintiff but rather the wealth of the defendant. As trial lawyers like to say, the point is to "send a message" to big corporations. The message has been received, and the response has been relentless pressure to have punitive damages declared unconstitutional. Head on challenges mostly failed, until some lawyers came up with the bright idea that "due process of law" might put some limits on what lawsuits can do.

The Supreme Court now holds that excessive punitive damages, and some methods for obtaining them, violate substantive due process. This term's case confirming the rule was State Farm Mutual Automobile Insurance v. Campbell, 538 U.S. ___ (2003)(Decided April 7, 2003). Following a jury trial on bad faith and unfair insurance practices claims, plaintiffs were awarded $1 million in compensatory damages and $145 million in punitive damages. Aside from a rather extreme ratio of compensatory to punitive damages (1:145, the Court suggests that anything over 1:10 is suspicious) the Court did not like the way plaintiff used evidence of State Farm's bad practices in other states to inflame the jury's outrage. While the Court has rejected efforts to ban punitive damages and has held that laws allowing them further legitimate interests of State government, the Court takes a dim view of attempts to set national policies using State court personal injury litigation.

Sources:

Cases cited above, and:

Laurence H. Tribe, American Constitutional Law, (2d Ed. 1988)